Does Facebook “Like” Button Give Rise to First Amendment Rights? Federal Appellate Court Set to Decide the Issue.


Many of us use Facebook “likes” every day to express our feelings and opinions on the internet. In fact, according to Facebook, around 3 billions “likes” and comments are made on the social network site on a daily basis. However, it is still a relatively new form of expression and, as such, might not get the protection of the American Constitution’s first amendment.

The issue has been brought before a judge in Hampton, Virginia where a deputy, Daniel Ray Carter, was fired by his sheriff. Carter sued for violation of the First Amendment after he was fired, alleging that he was let go as a result of “liking” the Facebook page of his boss’ political opponent during the town’s 2009 sheriff election. According to the lawsuit, Hampton sheriff B.J. Roberts said to Carter, “You made your bed, now you’re going to lie in it – after the election, you’re gone.” About five months after Roberts’s re-election, Carter was fired, along with five other employees who either supported Carter’s opponent or did not actively campaign for Carter during the election.

U.S. District Judge Raymond A. Jackson dismissed the suit, saying that the U.S. Constitution does not protect clicking the thumbs-up button on a Facebook page. According to Judge Jackson, the “like” button is not substantial enough of a statement to be considered free speech. In his decision, he wrote, “Merely ‘liking’ on a Facebook page is insufficient speech to merit constitutional protection.”

An appeal by Carter and his former co-workers is being reviewed by the U.S. Court of Appeals for the 4th Circuit. The American Civil Liberties Union has also filed an amicus brief supporting the effort to overturn Judge Jackson’s ruling. To demonstrate the power that a single click can have these days, the ACLU cited re-tweeting, signing a petition, and donating to a campaign online as examples. If the appeals court rules against Carter, the ACLU argues that all of these actions will be ineligible for protection under the Constitution’s first amendment. Rebecca K. Glenberg, the legal director of the ACLU of Virginia, told the Washington Post that “Pressing a ‘like’ button is analogous to other forms of speech, such as putting a button on your shirt with a candidate’s name on it.” The ACLU argues that, as the technological world grows, we must protect the news ways of communication which will inevitably develop.

Facebook has also come forward in support of Carter and the ACLU, saying that a Facebook “like” is the modern equivalent of putting up a front-yard campaign sign. Facebook will get a chance to argue their side of the case before a three-judge panel of the 4th Circuit Court of Appeals. The social media company will be allowed three minutes of oral argument when the panel hears the case.

Our Chicago libel attorneys defend individuals’ First Amendment and free speech rights to post on Facebook, Yelp and other websites information that criticizes businesses and addresses matters of public concern. Our Chicago Cybersquatting attorneys also represent and prosecute claims on behalf of businesses throughout the Chicago area including in Schaumburg and Mount Prospect, who have been unfairly and falsely criticized by consumers and competitors in defamatory publications in the online and off line media. We have successfully represented businesses who have been the victim of competitors setting up false rating sites and pretend consumer rating sites that are simply forums to falsely bash or business clients. We have also represented and defended consumers First Amendment and free speech rights to criticize businesses who are guilty of consumer fraud and false advertising.

If you are the victim of a defamatory and untruthful attack on your business or a consumer who has been sued to stop you from posting criticism of a business on line, contact one of our Oak Brook and Chicago defamation lawyers for a free consultation at 630-333-0333 or online by filling out our contact us form.

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